Page No.# 1/31 GAHC030006382024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./40/2024 The State of Mizoram r/b the Secretary to Govt. of Mizoram, Home Dept. Aizawl VERSUS Sh. Lalramzauva Hermon Veng, Khawzawl 2:Sh. Lalbiakhlun Advocate for the Petitioner : P.P./Addl.PP, Mizoram Advocate for the Respondent : Mr. P C Lalthangmawia BEFORE HON’BLE MRS. JUSTICE SHAMIMA JAHAN Advocate for the appelant (s): Mrs. Vanneihsiami, learned Addl. Public Prosecutor Advocate for the respondent(s): Mr. L.H. Lianhrima, learned Senior Counsel assisted by Ms. Ruth Lalrautfeli, learned counsel and Mr. P.C. Lalthangmawia, learned counsel Date on which judgment was reserved : NA Page No.# 2/31 Date of pronouncement of judgment : 14.07.2026 Whether the pronouncement is of the : operative part of the judgment?: NA Whether the full judgment has been :Yes pronounced? JUDGMENT AND ORDER (ORAL) (Shamima Jahan, J) Heard Mrs. Vanneihsiami, learned Addl. Public Prosecutor for the appellant. Also heard Mr. L.H. Lianhrima, learned Senior Counsel assisted by Ms. Ruth Lalrautfeli, learned counsel for the respondent No. 2 and Mr. P.C. Lalthangmawia, learned counsel for respondent No. 1. 2. This is an appeal filed by the State of Mizoram under Section 419 of Bharatia Nagarik Suraksha Sanhita, challenging the Judgment & Order dated 31.01.2023 passed by the Court of Special Judge, POCSO Act, Champhai Judicial District, Mizoram, in Sessions Registration No. 8/2019. By the said Judgment & Order, the learned Court had acquitted the respondent of all the charges and set him at liberty. Against this acquittal order, the State of Mizoram had filed the instant appeal. FACTS 3. The father of the victim, had lodged an ejahar on 23.12.2018, before the Officer-in-Charge, Khawzawl Police Station stating inter alia that on the previous day i.e., on 22.12.2018 between 11:00 am and 12:00 pm, his Page No.# 3/31 daughter who was aged 16 years of age, was alone in her house and that she was raped by the respondent No. 1 i.e., the accused person in the bedroom of the informant. The informant further stated that while he and other family members went to the house of a bereaved family, the accused came to the house of the victim and raped her. He also stated that the accused person tempted the victim with money even on earlier occasion and took sexual favours from the victim. 4. On the basis of the said FIR, the police registered the case as Khawzawl P.S. Case No. 58/2018, under Section 376(2)(i) of the Indian Penal Code (IPC) read with Section 4 of the Protection of Children from Sexual Offences Act (here-in-after shortly referred to as the “POCSO Act”). On completion of the investigation, the police submitted charge sheet on 09.02.2019 arraying respondent No. 1 as the accused person and charged him under both Section 376(2)(i) IPC as well as Section 4 of the POCSO Act. On completion of the necessary requirements, the learned Trial Court commenced the trial against the respondent No. 1 and on conclusion of the trial, acquitted respondent No. 1 from the charges as stated above. The main grounds for acquittal of Respondent No. 1, are as follows:- (i) The POCSO Act was promulgated to punish offenders for exploiting the minor children by committing sexual offences. (ii) The definition of child provided under Section 2 (1) (d) of the POCSO Act i.e. a child would mean a person below the age of 18 years, is only with regard to biological aspect of the matter and not to mental and psychological aspect. (iii) Children even at their age of 14 years may be considered as adult in the facts and circumstances of the case and also on their Page No.# 4/31 upbringing. (iv) Although the victim in the present case was minor but her actions displayed that she was mentally matured. (v) The victim did not shout when her mother came inside the room during the occurrence. (vi) It was in the evidence that victim accepted money and she never resisted the alleged sexual assault committed by Respondent No. 1. (vii) There is no evidence on record that the Respondent No. 1 committed penetrative sexual assault upon the victim. (viii) There was close relationship between Respondent No. 1 and the victim and the physical relationship on the part of the victim was voluntary. (ix) Although victim was 16 years 8 months and 9 days on the date of occurrence but she had reached the mental set up of being a woman of 18 years. (x) The victim wandered with Respondent No. 1 at various places and at no point of time, she resisted his acts. EVIDENCE 5. The father of the victim was examined as PW-1 and he stated before the Trial Court that he knew the accused person as they were from the same locality and that on 22.12.2018 i.e., on the day of occurrence, he went to the house of the bereaved family in the neighborhood and that his two sons had also gone to dig the grave for the dead person. He further stated that at that juncture, his wife and his daughter was left alone in the house. He also Page No.# 5/31 stated that after a while, his wife, and respondent No. 1 came to the house of the bereaved family and that at around 11:00 a.m., his wife returned to his house and further that, at around 12:00 pm, he also returned to his own house. He thereafter stated when he reached his house, his wife told him that when she returned to their house, she saw the accused person, raping their daughter on their bed and on being charged, the accused left the place of the victim. On being apprised of the said incident, this witness went and lodged the FIR in the police station. This witness also stated that the accused person is the teacher of the school, where his daughter studied at one point of time and that the accused used to offer money to his victim daughter for sexual favours. This witness was cross examined, and during his cross examination, the facts narrated by this witness were not demolished by any stretch. He reiterated that his wife told him that she caught Respondent No. 1., red handed when the accused person was raping their daughter. 6. The mother of the victim was examined as PW No. 2 and she stated before the Trial Court that when she was preparing to proceed to the house of the bereaved family, the accused person came to her house and then, after a little, she and the accused person, i.e., respondent No. 1 proceeded towards the house of the bereaved family. She thereafter stated that when they reached the bereaved family's house, accused person stayed outside the house of the bereaved family and she went inside and that she returned to her own house at around 11:00 a.m. on the same day. She thereafter stated that when she opened the main door of her house, she saw some object moving inside their bedroom through the thin curtain cloth and when she removed the curtain, she saw the accused person raping her daughter on their bed. i.e., on the bed of the parents of the victim and when she shouted Page No.# 6/31 at him, the accused person stopped raping the victim and in defence, the accused person showed his private parts to her, suggesting that he had not committed rape upon her daughter. She also stated that the accused person told her that if she does not disclose the incident to her husband, or other person, he would be looking after her victim daughter and that he would spend on her, for different purposes and also that, he would divorce his wife, and will marry the victim daughter. This witness further stated that hearing the commotion inside the house, other relatives and friends came inside the house, and then the accused fled away from the scene. 7. This witness was cross-examined by the defence counsel and in her cross examination, her statement in examination-in-chief was not demolished by any extent. She rather stated that the accused showed her his private parts after some time of the incident, which suggests the happening of the incident in question. 8. The most clinching evidence in the instant case is the statement of the victim and she was examined as PW 3. She stated before the Trial Court that she was the student of the accused person while she was studying in the middle school standard and that when she was studying in the school where the accused person was a teacher, the accused person used to sexually harass her on every opportunity but due to fear, she did not disclose the matter to anybody. She thereafter stated that she left the said school in the year 2017 and that on 5th of December, 2018, the school where the accused person was teaching, was taking part in the zonal sports and the accused person who was present there in the sports field, came to her when she was sitting at a nearby shop and invited her to join the sports to which she agreed. However, she stated that the accused person, took her to helipad Page No.# 7/31 instead of the field and when they reached the helipad, the accused person raped her in a bush nearby. She also stated that on that day, the accused person gave her Rs. 1,000/- and told her not to disclose the incident to anyone. This witness further stated that subsequently, on 14.12.2018, while she and one of her friend, went to a particular place, she met the accused person, who took her forcefully to a nearby school and by instructing her friend to sit outside, took her inside the school, and raped her for the second time and thereafter, the accused person gave her Rs. 100/- and also, the same amount of money to her friend. She thereafter stated that as she was warned, she did not disclose the second incident as well. This witness thereafter stated about the present incident and she narrated that when one person died in the locality, and her father went to the house of the bereaved family, as well as her brothers, she and her mother was alone and at that juncture, the accused person came to her house, and little thereafter, the accused person and her mother, left for the bereaved family. She thereafter stated that she was planning to go to her cousin's place on that day, and was preparing herself for that and during the said preparation, the accused person entered the bedroom of her parents and raped her there, for the third time. She then stated that when her mother reached the house, she rebuked the accused person. 9. This witness was cross examined by the defence counsel and she reiterated the statements made by her, during her examination-in-chief. She further stated that she had taken Rs. 1,000/- from the accused person on the first incident and she spent it by purchasing certain things. She also stated that two of her friends have seen the first and the second incident. 10. A lecturer, at the Champhai Government GM Higher Secondary Page No.# 8/31 School, and also a member of Child Welfare Committee (CWC) of Champhai District, was examined as PW 4 and he stated that on being informed by the father of the victim, he reached the place of the victim and found the police present at the said place and he had put his signature as a seizure witness, on the seizure of the birth certificate of the victim from her parents. 11. A neighbor was called by the mother of the victim to their house in the morning and this witness was examined as PW 5 and he stated that when the mother of the victim called him in the morning, he was asleep, and that when he went to the victim's house, before noon, he came to know that the victim was raped. This witness further stated that he signed as a seizure witness, in connection with the seizure of the birth certificate of the victim. 12. The Doctor, who examined the victim deposed as PW No. 6 and she stated that on examination, she found pear/cut on the private part of the victim, with redness near the pear areas and she also found the hymen of the victim as freshly ruptured. She further stated about the statement made by the victim before her to the effect that the accused person went inside the house of the victim and sexually assaulted the victim and that on earlier occasions too, the accused person used to sexually assault her. This witness had also examined the accused person on the same day and on examination, the accused person was found healthy, both physically and mentally and that his sexual organs were found to be fully developed. She further stated the narration given by the accused person to her that on a previous day, he had sexual relation with the victim as they were having a relationship and that the said sexual intercourse was not a forceful attempt. This witness was cross-examined and she stated that mild tear/cut of Labia Minora in the private part of the victim may be present, even without sexual Page No.# 9/31 intercourse, but at the same time, she also stated that the same rarely happens. 13. The Investigating Officer was examined as PW No. 7 and he stated that he had seized the Birth Certificate of the victim and had sent her for medical examination and that he had also sent the accused person for medical examination. He also submitted during his cross examination that medical reports of the victim suggested that hymen of the victim was ruptured and since they found that the case is made out, against the accused person, he submitted the charge sheet. 14. Apart from the said prosecution witnesses, the respondent No. 1 had adduced two defence witnesses. One was DW No. 1, who had stated that he had no family relationship with the accused person, deposed before the Court that he saw the victim on the day of the occurrence, pulling the jacket of the accused person outside their house, and further saw the victim pulling the accused person inside their house. On thinking that some quarrel had taken place between the victim and the accused person, he rushed to the house of the victim and when he reached inside the house, he saw the victim begging for money from the accused person and at that juncture, the mother of the victim reached the house and started shouting at the accused personand that he, thereafter, went outside the house. He further stated that he did not enter the bedroom of the victim at the relevant time and that when he entered inside the residence of the victim, he saw the victim and the respondent No. 1 in the common room. 15. The respondent No. 1 had examined himself as DW No. 2 and he stated before the Trial Court that in the morning hours, on the day of occurrence, he asked the mother of the victim as to whether she was going Page No.# 10/31 to the bereaved family's house, to which the mother of the victim, requested him to wait for a while and then, little after that, he and the mother of the victim went to the house of the bereaved family and when he was about to go, the victim indicated him to come back to her, after dropping her mother. He thereafter stated that after the mother went inside the house of the bereaved family, he came to the house of the victim and saw the victim dressed unpleasantly and that the victim had asked for some money from him. He further stated that he told her that on earlier occasion too, she had taken money from him and that she had to return the said money. He also stated that the victim started pulling his jacket and tried to snatch the wallet, and at that juncture, he escaped from there and while escaping, he found one person coming inside the house, and that little later, the mother of the victim came inside the house and she started scolding him as if he was trying to rape her daughter. He thereafter stated that after a little while, he left the house and that the case was registered against him. He further stated that the case was lodged to seek revenge against him, for encroachment upon the land of the victim's father although he said that both the families have restored good relationship later on. In his cross- examination, he however denied the suggestion that the victim was raped by him and also that, he meets the victim, and by paying money he takes sexual favour from her. 16. These are the evidences adduced in the instant case. The respondent No. 1 was thereafter examined under Section 313 of Cr.P.C. and in his answers to the questions put by the prosecution, he replied that he had not committed any offence as alleged against him and further stated that the family of the victim wanted to defame him as there were issues with land Page No.# 11/31 encroachment and for that reason, the family of the victim had put up a story of raping their daughter. SUBMISSIONS 17. Mrs. Vanneihsiami, learned Addl. Public Prosecutor for the State of Mizoram, submitted that the incident occurred when the victim was 16 years of age and that the said age of the victim was not disputed in the present case. She submits that the date of birth of the victim was on 13.04.2002 and the birth certificate was also seized in the instant case, showing the said date of birth. She stated thatin the statement of the prosecutrix, both before the Trial Court, as well as before the Magistrate and before the police, the said prosecutrix has maintained the consistency which inspires the confidence of the Court. She however stated that the present incident was not stated by the victim before the Magistrate in her statement under Section 164 of the Cr.P.C. as the query with regard to the present incident was not asked by the Magistrate concerned. She by relying on the statement recorded under Section 164 Cr.P.C., stated that the entire examination was in the question and answer form and whatever queries were being asked, she replied but the present incident was not asked and as such, she did not say anything about the same. She, therefore, submits that the same cannot be a contradiction in the eyes of law. She thereafter referred to the statement made by the victim before the police wherein she stated not only the present incident, but also all other previous incidents related to the fact that accused person had committed rape upon the victim. She stated that since the statement of the prosecutrix was consistent before the authorities, barring the absence of the present incident before the Magistrate, the same can be relied on, for Page No.# 12/31 bringing home the offence committed by the respondent No. 1. She has also relied on the statements made by the mother of the victim, who had seen the incident by her own eyes after she reached home. She had also relied on the medical report which states that injuries were found in the private parts of the victim along with recent rupture of the hymen. The learned counsel also submitted that there are discrepancies between the statements of DW 1 and DW 2. She also stated that the claim made by DW 1 that she is not related to the accused person, is incorrect as the fact remains that she was actually related to the accused person. To substantiate the arguments, she relied on the Judgment delivered by the Hon’ble Supreme Court in In Re: Right to Privacy of Adolescents reported in (2024) 15 SCC 788, by which the Hon’ble Supreme Court had observed that the concept of non- exploitative sexual acts enunciated by the High Court, is not acceptable, in view of the fact that a girl who is minor and is subjected to such a horrific act, cannot be termed as such. The Supreme Court had also discarded the concept of older adolescents as raised by the High Court. 18. Mr. L.H. Lianhrima, learned Senior advocate assisted by Ms. Ruth Lalruatfeli, learned counsel for respondent No. 2., i.e., the complainant, had submitted that under Section 2 (1) (d) of the POCSO Act, the child is defined and it is provided that a person, below the age of 18 years, will be construed as a child and that in the present case, the victim was of 16 years of age and was a child under the POCSO Act. He has also relied on Section 29 of the POCSO Act, wherein it is provided that when a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the Act, a Special Court shall presume that the person has committed or abetted or had attempted to commit the offence, unless the Page No.# 13/31 contrary is proved. He therefore submits that in the instant case, the presumption will come into play, in respect of the accused person. To substantiate his arguments, he placed reliance on the Judgment passed by the Hon’ble Supreme Court, in Lok Man Eloki, versus State of Uttar Pradesh reported in (2025) 4 SCC 470, wherein the Apex Court had observed thateven in absence of any major injury, on the part of the prosecutrix, the offence of rape can still be proved and it was reiterated that no injuries on the private parts of the victim is always not fatal to the case of the prosecution. He has also relied on the Judgment passed by the Hon’ble Apex Court in Deepak Kumar Sahu, vs The State of Chhattisgarh reported in 2025 INSC 929, wherein it was observed that in cases where victim's evidence is forwarding, probable and natural, the conviction can be entered into, on the sole testimony thereof. He further relied on the Judgment passed by the Hon’ble Apex Court in Vhani Prasad, alias Raju, versus State of the Arunachal Pradesh reported in 2025 INSC 934, by which the Apex Court had observed that on the basis of the oral testimony of the victim and the corroborating evidence of other witnesses, the case can be well established against the accused person. 19. Mr. P.C. Lalthangmawia, learned counsel appearing for the accused person i.e., respondent No. 1, had submitted that charges were framed against the accused person regarding the incident that had taken place on 22.12.2018, at around 11:00 am to 12:00 pm, on which day, the respondent No. 1, was charged of raping the victim in the house of the victim but the said facts were not stated by the victim in her statement before the Magistrate, under Section 164 Cr.P.C. He states that the victim had stated about earlier incidents and not the incident for which the charges were Page No.# 14/31 framed and the trial was conducted. He further submits that in the facts of the present case, Section 4 of the POCSO Act does not lie inasmuch as the mandatory requirement of penetration into the private part of the victim, is not established. He placed Section 4 of the POCSO Act and further submitted that neither there were any penetration on the part of Respondent No. 1 nor there was any insertion of any object into the private parts of the victim or any manipulation done on the part of the body of the victim or any application of mouth into the private parts of the child. He as such submits that in absence of the said Acts, conviction under Section 4 of the POCSO Act to Respondent No. 1, cannot be ordered. To substantiate his arguments, he relied on the Judgment delivered by the Hon’ble Supreme Court of India in Criminal Appeal No. 94 of 2005, namely, State versus Vipin @ Lala, by which the Hon’ble Supreme Court, on contradictions in the said case held that the sole testimony of the prosecutrix cannot be relied on and had acquitted the accused person. ANALYSIS AND FINDINGS 20. In cases of sexual offences, the most reliable and clinching evidence to establish the said offence is the statement of the prosecutrix. If the statement of the prosecutrix, right from the beginning i.e. from the stage of recording of the statement of the victim by the police till the stage of statement recorded of the victim by the Trial Court, inspires confidence, the same can be relied upon, to bring home the offence committed by the accused person. It is a settled position of law that if the statements of the victim are consistent before all the authorities, the same will inspire confidence of the Court and if the said statements are not consistent with Page No.# 15/31 each other, then corroboration to the prosecution story, has to be looked for. The said requirement of law is held by the Hon’ble Supreme Court in various decisions. One of such decision is Rai Sandeep Vs. State of NCT of Delhi reported in 2012 (8) SCC 21, by which the Hon’ble Apex Court has observed as quoted hereunder: “15. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every Page No.# 16/31 other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 21. In view of the said observation, it is therefore required that the statement of the victim should be looked into carefully made before all the authorities i.e. before the Police, before the Magistrate and before the Trial Court. 22. Before the Trial Court statement of the victim, in brief are stated below: She stated that she was the student of the accused person, when she studied in Hermon Middle School. She also stated that when she was studying there, the respondent no.1 i.e. the accused person, Page No.# 17/31 use to caress her thigh, touch her other private parts on every opportunity and since the accused person was her teacher, she had no courage to disclose the matter. She thereafter stated that in the year 2017, she left the said school and on 05.12.2018, when the Hermon Middle School, where she studied and of which the accused person was the Teacher, was taking part in zonal sports, the accused person came to her as she was standing at a nearby shop, and invited her to join the sports in the field and when she agreed, the accused person instead of taking her to the field, took her to helipad and when they reached helipad, respondent no.1 i.e. the accused person pulled her and raped her in the bushes nearby and that thereafter, respondent no.1 gave her Rs. 1000/- and warned her not to disclose the incident. She thereafter stated that the second incident of rape took place in the night of 14.12.2018, when she and her friend were on their way to a particular place and on the way both the victim and her friend met the accused, who forcefully took both of them to a particular school. On reaching the said school, respondent no.1 instructed the friend of the victim to the seat outside the school and he took the victim inside the school compound and raped her there. She then stated that after the said second incident, respondent no.1 gave both the victim and her friend Rs. 100/- and that similar to the first incident, the respondent no.1 again threatened the victim not to divulge the incident and she as such did not tell it to anyone. The victim thereafter stated that the third incident took place on 22.12.2018 when her father and her brothers went to a Page No.# 18/31 house, where a death had taken place and that little thereafter the accused and her mother also left for the house of the bereaved family and while she was preparing to visit her cousin’s place, the accused person came to her house, entered her room and forcefully raped her again. However, she stated that her mother returned home and on being scolded by her mother, the respondent no.1 left the house. 23. At this point, it is relevant to refer to the law laid down by the Apex Court to the effect that in order to put reliance on the sole testimony of the prosecutrix, the said victim should have withstood the cross-examination of any length and however strenuous it may be and under no circumstances, it should give room for any doubt as to the factum of the occurrence as well as the persons involved. In the instant case, the victim was cross-examined and she reiterated that the accused person use to assault her sexually even when she was studying in the school, where the accused person was the teacher. She also reiterated that the first incident of rape had taken place in the helipad and she admitted that she took Rs. 1000/-, which she had been spent purchasing something. She had also stated about the second incident at the school premises and she added during the said cross-examination that her friends had witnessed the incident which had occurred both in helipad as well as in the school premises. She also stated that three incidents of rape had taken place in a month of December, 2018. She, however, testified during the cross-examination that she made no sounds when her mother entered the bedroom. 24. In order to see the consistency of the statement of the victim before Page No.# 19/31 all the authorities, this Court would like to emphasize on the statement made by the victim before the Magistrate recorded under Section 164 of the Cr.P.C. In the said statement, the victim, however, stated one more incident with the respondent no.1. She stated that in the year 2015, she went with her friend to some place and that respondent no.1 after meeting them, wanted to take both of them to some place and when all the three reached a particular place, respondent no.1 wanted to sexually assault the victim but she got scared and fled from the place and she further added that she did not know what had happened with her friend on that day. She also stated before the magistrate that respondent no.1 use to touch her private parts and that he use to touch other students too. She then stated about the incident that happened in the helipad in December, 2018 but after stating that she admitted that she did not shout for any help. She thereafter stated about the second incident i.e. when she went with her friend, who was made to seat outside the school and she was taken inside the school and that she was raped there. She also stated that she later on heard that her friend was also raped by respondent no.1. She further stated that she was raped by no one else but by the respondent no.1. 25. A bare perusal of the said statement recorded under Section 164 of the Cr.P.C shows that the statements were recorded in question and answer form. Whatever questions were put to the victim, she answered those and it is seen that the victim was not questioned about the incident that had taken place on 22.12.2018 inside the house of the victim and since no question was put with regard to the said incident, there was no mention by the victim about the same. In absence of the statements regarding the alleged third incident of rape on 22.12.2018, the same cannot be considered as fatal to Page No.# 20/31 the prosecution case since it cannot be said that there are contradictions between the statements of the prosecutrix before the authorities. There are actually no contradictions but total absence of the third incident of rape. 26. It is now relevant to examine the statement of the victim recorded by the police under Section 161 of the Cr.P.C. Before the police, the victim stated that they were three siblings and she is the youngest one and that she had two elder brothers. She also stated that she left her education during October, 2018. She thereafter stated that in the year 2015, the accused person wanted to have sexual favor from both the victim as well as the other girl with whom she went to a particular place. She then stated about the first incident of rape that had taken place at helipad and she narrated the entire incident. She also stated that an amount of Rs. 1000/- was given to her after the said incident of rape. She also stated about the incident that had taken place on 14.12.2018 in the school premises, as well as the present incident. 27. The statement before the Police and the statement before the Trial Court appears to be consistent. Before both the authorities, the victim had stated three incidents of rape committed upon her, by respondent no.1. However, before the Trial Court the victim did not state about the incident that had taken place in 2015 but the said fact finds mention, in both the statements before the Police as well as before the Magistrate. However, as far as the root of the case is concerned i.e. respondent no.1 committing the offence of rape upon the victim in the house of the victim, the same remains consistent before the police authorities and before the Trial Court. However the same did not find mention in the statement before the Magistrate, as has been stated above, due to absence of the particular question been put Page No.# 21/31 by the Magistrate concerned. It has been held by the Hon’ble Supreme Court that what would be more relevant would be the consistency of statement right from starting point till the end namely at the time when the witness makes the initial statement and ultimately before the Court. If this court considers the same, the statement of the victim before the Police and before the Trial Court, had remained consistent. As such there is nothing to disbelief the statement of the victim and the same inspires the confidence of this Court. 28. Since it is a settled position that in case of any inconsistency in the statement of the witnesses before the authorities concerned, corroboration should be sought for. Although there appears no inconsistency in the statement of the victim but since there is total absence of the fact relating to the instant incident in her statement under Section 164 of the CRPC, the corroboration is looked for by this Court, for the ends of justice. 29. The main corroboration in the present case emanates from the statement of the mother of the victim, who was examined as PW No. 2 and the statement of the mother is briefly stated here-in-below: She stated that on 22.12.2018 in the morning hours, her husband and her sons had left for the house, where a death had taken place and while she was also preparing to go to the bereaved family’s house after her husband and her sons had left, respondent no.1 came to her house and little thereafter she and respondent no.1 went to the house of the bereaved family. She thereafter stated that when she returned from the house of the bereaved family at around 11 am, she saw some disturbances inside her bedroom and by removing the curtain, she saw the accused person raping her Page No.# 22/31 daughter on her bed and upon seeing the uncanny incident, she shouted at the accused person and at that juncture, the accused person stopped raping the victim and that he came down from the bed. It is also in her statement that the accused person showed his private parts to her suggesting that he had not raped his daughter but little thereafter the accused person told this witness not to disclose the matter to anyone and that he would look after her daughter and would bear her expenses. She also stated that when commotion took place due to the said incident, other persons entered her house and on that point of time, the accused person left the house. This witness was cross-examined at length but none of her statement in her examination-in-chief was demolished. In cases of sexual offences, there arises hardly any opportunity to have ocular evidence but in the instant case, the mother of the victim is the eye witness and she had seen the accused person molesting her daughter inside her bedroom. This evidence supports the prosecution case and corroborates the evidence of the prosecutrix. 30. Apart from the said corroboration, the evidence of the Doctor also supports the prosecution case. The doctor was examined as PW No. 6 and she stated that on examination she found pear/cut in the private parts of the victim along with redness near the cut areas. She also found hymen of the victim, freshly ruptured. This doctor had also examined the accused person on the same day after examination of the victim and she found the sexual organ of the accused person fully developed and she had returned the finding that the accused person was physically and mentally healthy. This Page No.# 23/31 witness also stated that the accused revealed to her that he had sexual relationship with the victim on the previous day and that the same was not forceful. Although it is the settled position of law that the medical examination/report is not a conclusive factor to establish the incident of rape upon the victim but in the instant case, the evidence of the doctor lend support to the prosecution case. The medical examination of the victim was done on the very next day of the incident and injuries were found in the private parts of the victim. Although in the medical report, it is not stipulated that hymen of the victim was freshly ruptured as in the said report, the hymen was stated to be simply ruptured but the doctor had testified that hymen was freshly ruptured when she was examined by the Trial Court, which suggests that the same was due to the incident before the day of examination i.e. on 22.12.2018. 31. It is also no longer res-integra that the evidence of the defence witnesses should be considered at par with the evidence of the prosecution witnesses and that the evidence of both the prosecution and defence witnesses have the same evidentiary value. In the instant case, DW No. 1 also claimed to be an eye witness. However, there appear contradictions in the statement of DW1 and DW2 i.e. the accused person himself. DW1 stated that he saw the victim pulling the jacket of the accused person outside the house of the victim and that he saw the victim pulling the accused person towards the inside of their house and on presumption that quarrel had taken place between the victim and the accused person, this witness went inside the house and he saw and heard, the victim begging for money from the accused person. This witness further stated that at that juncture, the mother of the victim reached the place of occurrence and that he went out of the Page No.# 24/31 house. Whereas the accused person examining himself as DW2 had stated before the Trial Court that when he left with the mother of the victim to the house of the bereaved family, the victim indicated him by way of gestures to come back to her house after dropping her mother and that thereafter he stated that he went back to the house of the victim and that the victim was found, not dressed in proper manner and that she started asking him for money. He thereafter stated that victim is much younger to him and that the victim had pulled his jacket, when they were inside the house while on the other hand DW1 said that the victim had pulled the jacket of the accused person outside her house. Further in his cross-examination, this witness i.e. DW2 stated that he had no plan to meet the victim on the day of occurrence after dropping the mother of the victim in the house of the bereaved family but in his examination in chief, he stated that on being requested by the victim, he went back to her house after dropping the mother at the bereaved family’s house. In view of the said inconsistencies, the statement of the DW1 and DW2 cannot be believed by this Court. 32. It is also not a case that the accused person was a young boy and was in love with the victim and out of the love affair, they had physical relationship. The accused person was of 50 years of age at the time of the occurrence and that he was married and had children. It is in the evidence that the son of the accused person had built up a house at the border of the two houses, one belonging to the accused person and the other belonging to the victim’s parents. Further, the accused person was the Teacher of Hermon Middle School, where the victim had studied and as such, there is every possibility that the accused person would know the age of the victim. Furthermore, the accused person is the next door neighbor of the victim and Page No.# 25/31 on that ground also, the accused person will know, how old the victim was. The accused person further had himself admitted in his examination as defence witness no.2 that the victim is much younger to him and in that view of the matter, the accused person should have taken care of the victim but on the other hand, he had sexually molested her on many occasions. 33. Further the facts of the instant case might suggest that the victim was conscious and was cooperative with regard to the physical relationship between the respondent no.1 and herself but since the victim was minor and was of 16 years of age, this aspect becomes immaterial. The Hon’ble Supreme Court in Varun Kumar @ Sonu Vs. State of Himachal Pradesh reported in 2025 INSC 1232 had observed as follows: “11. Having heard learned counsel appearing for the parties and having gone through the material placed on record and the evidence led by the prosecution, it emerges that so far as the age of the victim is concerned, the same has not been disputed before this Court. As per the case of the prosecution, the victim was about 15 years old on the date of the incident. Keeping in view the aforesaid aspect, if the deposition given by the victim (PW-4) is carefully examined, it transpires that the victim has specifically deposed before the trial court about the manner in which the incident took place. Specific allegations with regard to committing rape upon her by the appellant/accused and committing unnatural sex upon her have been levelled by the victim against the appellant/accused. The victim has specifically deposed that when she reached her friend’s house, the appellant/accused took her to Una in a bus. At that time, the victim had borrowed two pairs of suits from her friend. At Una, Page No.# 26/31 the appellant/accused took her to the house of his cousin (the co- accused), who was residing with his wife and daughter. The victim has further deposed that she along with the appellant/accused slept in one room, whereas, others slept in another room. Further, during the night, the appellant/accused subjected the victim to forcible sexual intercourse. Next morning, the victim changed her clothes on the asking of the wife of the co-accused. In the evening, the victim was told by the co-accused that her family had lodged a report with the police, and the police were searching for them. Thereafter, they went to the factory premises of the co-accused and stayed there. At that place, the appellant/accused subjected the victim to carnal intercourse. Thus, from the testimony given by the victim, it is clear that she was subjected to sexual intercourse by the appellant/accused. From the evidence given by the victim, we are of the view that the victim can be termed as a sterling witness…………… 15. Even assuming that the victim had wilfully volunteered to sexual intercourse, this aspect becomes immaterial, as the victim was a minor on the date of the incident in question. As observed hereinabove, as per the case of the prosecution, she was aged about 15 years on the date of the incident.” Above case seems to be similar in facts compared to the instant case. In that case too, the victim went with the accused person to different places and she had physical intimacy with the accused person. Further in the said case, the victim stated that she was subjected to forcible sexual intercourse which however is not Page No.# 27/31 there in the instant case. Further in that case, the victim was of 15 years old and in the instant case, the victim is of 16 years old but even if the victim can be assumed to have willfully volunteered the sexual intercourse, the same becomes immaterial since the victim was minor at the date of the incident. Further, the accused person in the present case had knowledge of the fact, by every stretch that the victim was minor at the time of occurrence. 34. The learned Trial Court had given a different consideration to the facts of the instant case. It had held that even children at the minor age can be treated as adults depending on their mind set, which again is dependable with respect to different areas. The Court went to the extent that the victim was not exploited rather she consented to the sexual relationship between her and respondent no.1. It further held that although victim was 16 years 8 months and 9 days and that she had few months to go for attaining the age of 18 years and the fact situation suggested that the victim had attained the mental condition of an 18 year old girl at the time of the occurrence. It was also held that the victim wandered with the accused person at many places but did not raise alarm when she alleged rape committed upon her by the accused person and that the same shows her consent and further that the victim accompanied the accused person voluntarily and she did not raise alarm even when her mother came inside the room. 35. With the above observation, the learned Trial Court held that prosecution evidence did not inspire confidence of the Court with the fact that victim was raped by the accused person and on that ground, the accused person was acquitted. It has been held by the Supreme Court in Re: in Right to Privacy of Adolescents (Supra) that the concept of non- Page No.# 28/31 exploitative sexual acts is a misnomer and sexual act with a minor girl which is a heinous and a horrific act, cannot be termed as non-exploitative. Further since the victim was less than 18 years of age, her consent or voluntary acceptance of physical relationship with an adult will also not matter and the accused person having the knowledge about the age of the victim cannot be held as not responsible for the said offence. Furthermore the finding of the learned Trial Court that the victim had already attained the mental condition of 18 years of age is also bizarre in the facts of the present case and it was also incorrect to say that there were few months left for the victim to attain the age of 18 years. 36. However, the facts and circumstances of the present case, together with the absence of the statement regarding the incident at hand before the Magistrate, this Court finds it fit that Respondent no.1, be convicted under Section 12 of the POCSO Act, 2012. More so due to the fact that it is in the evidence that Respondent No. 1 displayed his private part before the mother of the victim after the occurrence suggesting that no rape was committed. Section 11 and 12 of the POCSO Act which provides for the definition of Sexual harassment and punishment prescribed for the same is quoted here- in-below:- “11: Sexual harassment- A person is said to commit sexual harassment upon a child when such person with sexual intent, - (i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or Page No.# 29/31 (ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or (iii) shows any object to a child in any form or media for pornographic purposes; or (iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or (v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or (vi) entices a child for pornographic purposes or gives gratification therefore. Explanation. - Any question which involves sexual intent shall be a question of fact. 12: Punishment for sexual harassment- Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.” From the facts and circumstances of the case and the evidence adduced, it is established that respondent no.1 had committed an offence of sexual harassment as defined under Section 11 of the Page No.# 30/31 POCSO Act more specifically Section 11(i) and 11(iv) of the said Act and as such he is punished there under. 37. It is further relevant to mention here-in that under Section 222 of the Cr.P.C., the Court is permitted to convict a person of a lesser offence which was not explicitly mentioned in the original charge, if the major offence is not fully proven. In the instant case, the charges were framed under Section 376(2)(i) of the IPC R/W Section 4 of the POCSO Act and Respondent No. 1 was acquitted of the said charges. Further as has been held by the Trial Court, Section 376(2)(i) of the Indian Penal Code was omitted w.e.f., 21.04.2018. Be that as it may, this Court however finds that in the instant case, ingredients of Section 4 of the POCSO Act were not fully proved. Since Section 12 of the POCSO Act provides for a lesser offence than Section 4 of the POCSO Act, this Court can convict and sentence the accused person under Section 12 of the POCSO Act without there being the charge thereof. CONCLUSIONS 38. The respondent no.1 is as such convicted under Section 12 of the POCSO Act. The respondent no.1 upon such conviction is sentenced to an imprisonment for a term of two years with a fine of Rs. 1000/- and in default of the fine, respondent no.1 is directed to undergo an additional Simple Imprisonment for another period of one month. 39. In view of the findings narrated above, this Court finds it fit that the impugned judgment and order dated 31.01.2023 passed by the learned Special Judge, POCSO Act, Champhai, Judicial District: Mizoram should be set aside and quashed. 40. The respondent no.1 should surrender before the Court of Special Page No.# 31/31 Judge POCSO Act, Champhai Judicial District: Mizoram forthwith to serve out the sentence and on failure of the same, the jurisdictional police personnel will do the needful. 41. The period of incarceration undergone by respondent no.1 in connection with the present offence during the investigation as well as the trial, to be set off towards the punishment imposed on respondent no.1. 42. Return back the LCR. 43. No order as to costs. 44. Matter is disposed of. JUDGE Comparing Assistant